Brussels, 27 February 2012 – the European Commission has sent a reasoned opinion to Denmark for obstructing the freedom to provide services. This is the last step in the procedure before possibly taking the matter to the Court of Justice. Denmark systematically requires Dutch sailing ships with more than 12 passengers docking in its ports following an international journey to have a certification under the SOLAS Convention. In so doing, it fails to examine for each of these ships whether the safety rules they are already subject to in the Netherlands would be sufficient to ensure an adequate level of safety. If there is no satisfactory reply within two months, the Commission may refer the matter to the Court of Justice of the European Union.

The EU rules

Directive 2009/45/EC lays down rules for the certification of certain passenger ships engaged on domestic voyages. However, there is no European measure laying down harmonised rules for the certification of ships engaged on international voyages. Therefore, the Member States are in principle free to impose the safety rules they see fit on these ships, within the limits of European law.

In this regard, applying national safety standards to ships flying the flag of another Member State may be regarded as a restriction on freedom to provide services, which the owners of the ships enjoy under Article 56 TFEU and Regulation (EEC) No 4055/86.

Such a restriction may be accepted only if it is justified by overriding reasons of public interest and if that interest is not already safeguarded by the rules the service provider is subject to in the State of establishment. National legislation imposed on service providers established in another Member State must also be appropriate and proportionate.

The practical consequences of a restriction on the free movement of ships

Dutch sailing ships carrying more than 12 passengers, although certified under maritime safety rules in the Netherlands, risk being held in Danish ports for lack of SOLAS certification.

The issues addressed to Denmark

The Danish authorities have failed to demonstrate why the Dutch safety rules should systematically be deemed insufficient on the basis of the characteristics of the ships involved and why the SOLAS rules should always be considered appropriate.

In actual fact, the Danish authorities should examine the ships involved on a case-by-case basis to determine whether to apply different standards from those they are already subject to in the Netherlands, be they SOLAS standards or other requirements, particularly relating to the conduct of their operations.

Next steps

The Commission's request takes the form of a reasoned opinion under EU infringement procedures. If Denmark fails to inform the Commission within two months of measures taken to ensure full compliance with EU law, the Commission could refer the case to the Court of Justice of the European Union.